Immunity for Genocide and Other War Crimes?

On December 28, 2012 the President of Guatemala, former General Otto Perez Molina, issued a presidential decree establishing that the Government of Guatemala will not abide by rulings of the Inter-American Court on Human Rights relating to crimes that occurred prior to 1987.

The decree went into effect January 3, 2013, but Perez Molina immediately came under intense pressure from national and international human rights organizations, and was forced to promise to rescind the law on January 11, 2013. Though short lived, the fact that a law which so brazenly contradicts firmly established international norms was ever created has been cause for alarm.

The law would have benefited a cadre of former military officers charged with crimes such as genocide, torture and forced disappearance. Perez Molina, himself, is part of this group.

Guatemala signed the Inter-American Convention in 1978 and in 1987 accepted the jurisdiction of the Inter-American Court. Since then the Court has issued 17 rulings related to Guatemala, nine of which related to crimes that occurred prior to 1987. The Inter-American Court has clearly established jurisdiction over crimes prior to 1987, jurisdiction accepted by the Guatemalan government, … until now, and the administration of former General Perez Molina.

Most directly and immediately affected by the December 28 decree are the three cases ruled on by the Inter-American Court since Perez Molina assumed the presidency: the Rio Negro/ Chixoy Dam Massacres Case, the Diario Militar [Military Journal] Case and the Fernando Garcia Case. Also, in November 2009, the Court ruled that Guatemala must prosecute authors of the Dos Erres massacre, a case which led to charges of acts of genocide against former military dictator Efrain Rios Montt, a prosecution that could suffer setbacks as a result of this decree.

The Rio Negro case consists of a series of four massacres between 1979 and 1982 of more than 330 unarmed Maya Achi villagers who objected to forced displacement by the World Bank and Inter-American Development Bank funded Chixoy Hydroelectric dam. In one of these massacres 107 children and 70 women were tortured, raped and killed, and 17 children taken into slavery. (In all, some 440 Rio Negro villagers were killed due to the Chixoy Dam project.)

The Diario Militar Case involves the forced disappearance and torture of 28 people recorded in a military journal discovered by investigators. Two were children, and in one case survivors described how the rape and torture of a woman’s small children formed part of her own torture. Fernando Garcia was a unionist kidnapped and disappeared by Guatemalan National Police officers in 1984. The Inter-American Court ordered that the Government of Guatemala provide reparations to the survivors and families of victims, and prosecute those responsible.

IN “PEACE TIME”, WAR CRIMINALS RUN THE GOVERNMENT

Approximately 250,000 people were killed in Guatemala’s armed conflict. A United Nations sponsored truth commission determined that approximately 94% of killings had been carried out by the Guatemalan government, 3% by the armed revolutionary movements and authorship of 4% could not be determined. The bulk of the killings occurred between 1978 and 1983, but particularly from 1981 to 1983 when the army implemented a policy of massacres of Mayan villages across broad swathes of territory. The U.S. government backed the military governments before, during and after the worst years of State repression and genocide.

After the December 1996 peace accord, the same sectors who ruled the nation during the State-sponsored ‘violencia’ held onto political power, as illustrated by both the current President, former General Perez Molina, and the congressional career of 1982-83 military dictator Efrain Rios Montt. Rios Montt was a congressman from 1994 to 2011, holding the presidency of the congress during several sessions.

JUSTICE ADVOCATES CLEAN UP THE COURTS

The December 28, 2012 decree puts to the test a more than a decade long concerted effort by Guatemalan justice advocates, in partnership with the United Nations, to clean up Guatemala’s corrupt justice system.

After the signing of the 1996 peace accords, Guatemala’s justice system was controlled by clandestine networks who maintained impunity for crimes committed by the military and organized crime networks, often closely connected to the military, which continued to kill with impunity.

Fruits of their labor began to be seen after CICIG, a United Nations sponsored international team of special prosecutors dedicated to combating the clandestine networks in government, began operation in 2007, and members of the Attorney General’s office and other key members of the justice system, including a former Minister of Interior, former National Police Chiefs and other officials were arrested or faced prosecution for acts of corruption mostly related to organized crime activity.

Guatemalan justice activists, with the support of CICIG, not only prosecuted criminals infiltrating State institutions, but also closely monitored the processes for appointment of members of the justice system, including the Attorney General and judges. In 2009, candidates for Guatemala’s Supreme Court justice seats were closely screened for links to organized crime, and in 2010 activists were able to block the appointment of an Attorney General with criminal ties, soon after achieving the appointment of the new AG Claudia Paz y Paz. Since 2010, Guatemala’s murder rate has gone down slightly, while its neighbors in Central America’s Northern Triangle, El Salvador and Honduras, saw significant increases.

The advances in justice sector reform inevitably assisted efforts of surviving victims of State-sponsored violence who had been seeking justice since the crimes occurred, in some cases for decades. Cases against the authors of crimes against humanity began to make headway in national courts.

WAR CRIMINALS TAKEN TO TRIAL

In January 2012, Guatemalan courts found cause to initiate the trial of Efrain Rios Montt on charges of acts of genocide against the Ixil Maya people. While Rios Montt appealed this court ruling, in May 2012 courts found grounds to initiate a second trial against him, on charges of perpetrating another act of genocide, the 1982 massacre of over 200 men, women and children in the town of Dos Erres in the Peten region.

Rios Montt has appealed both of the rulings, claiming he should benefit from an Amnesty Law passed in 1986. Guatemala’s Supreme Court ruled on August 31, 2012 that Rios Montt did not qualify for amnesty under this law. His lawyers then appealed to the Guatemala Constitutional Court, which is expected to rule this month. International law is clear that amnesty cannot be granted for crimes against humanity.

Also charged in the Ixil genocide case is General Hector Mario Lopez Fuentes, arrested on June 17, 2011. Lopez Fuentes acted as the Military’s Chief of Staff under Rios Montt, from 1982 to 1983. During this time, the period of the Ixil genocide, Guatemala’s current president Otto Perez Molina was the commander of the special task force stationed in Ixil area, in the town of Nebaj, likely under the direct command of Lopez Fuentes.

Lopez Fuentes, who has been in a military hospital since just weeks after his arrest, is asking courts to declare him unfit to face trial on the basis of health problems. Lawyers for the genocide survivors explain his claims of poor health are a rouse.

Current president Perez Molina was also named in the 1992 torture and forced disappearance of the revolutionary combatant Efrain Bamaca, a case which was closed in a 2010 Constitutional Court ruling that directly defied Inter-American Court rulings. The Constitutional Court order to close the Bamaca case overturned a 2009 ruling by the newly appointed Supreme Court, which had recently convened after CICIG and justice activists had spent months of intensely examining candidates for signs of corruption and criminal connections.

In 2011, a new set of Constitutional Court justices was named. Though as yet unclear how the new court may rule, this court has confronted CICIG on several occasions.

CRIME LINKED LAWYERS AND JUDGES ATTACK JUSTICE REFORMERS

As prosecution advances against military officers in cases relating to both crimes against humanity and organized crime activities, judges and public prosecutors have come up against intense pressure, ranging from threats to spurious legal actions against them.

Supreme Court Justice Cesar Barrientos, an outspoken reformist named during the intense scrutiny of Supreme Court appointments in 2009, has been a particular target. Just weeks before he ruled against an appeal by Rios Montt claiming amnesty for crimes, Barrientos came under fire in a public campaign demanding his removal, headed up by figures like appeals court justice Silvia de Leon, and lawyers Moises Galido and Ricardo Méndez Ruiz.

The attacks against Barrientos occurred at the same time in early August 2012 that one of his opponents, Moises Galido, also the lawyer to General Hector Lopez Fuentes, was formally charged along with Efrain Rios Montt’s son, former General Enrique Rios Sosa, and six others with crimes related to the robbery of 471 million quetzals [approximately US$60 million] from the Department of Defense when Rios Sosa served as Minister of Defense in 2001.

Silvia de Leon, an appeals court judge, claimed she was unduly pressured by Barrientos after she issued a ruling declaring a lack a merit in the Rios Sosa case, a ruling overturned in October 2012. She was also questioned for releasing a former Attorney General [2002-03] charged with money laundering, another ruling that was later overturned. She has been named by CICIG as a judge who facilitates organized crime in a list of 18 judges that was turned over by CICIG to the Attorney General in on November 29, 2012, for criminal investigation.

Lawyer Ricardo Mendez Ruiz gained notoriety in November 2011 when he presented charges against the reformist AG Claudia Paz y Paz, her family members, and human rights activists for a kidnapping he was victim to in 1982. Mendez Ruiz admits the charges are politically motivated; he accused people who were infants, were unborn, and some who did not live in Guatemala at the time of the kidnapping. Some are former revolutionaries; many are renowned human rights advocates.

Mendez Ruiz, also a former military officer, was kidnapped and held over two months in 1982 by the Guerrilla Army of the Poor [EGP] when his father, Ricardo Ruiz Rohrmoser, was Minister of Governance under dictator Efrain Rios Montt. The EGP demanded release of their militants in exchange for his release. Ruiz Rohrmoser is implicated in many gross human rights violations, and is reported to be active in a veterans association – AVEMILGUA – that has threatened and intimidated those working to end impunity. He is reported to have commanded the infamous military base in Coban where over 400 bodies were recently exhumed, which – during his command – was the base of operations for the Achi genocide in the Rabinal region.

U.S. AND CANADA SILENT ON CRIMES AND IMPUNITY, BUT MAINTAIN POLITICAL AND BUSINESS AS USUAL

Neither the U.S. State Department nor Canadian Foreign Affairs has made public statements regarding the war crimes accusations against President Perez Molina. Guatemala currently holds a rotating seat on the United Nations Security Council. Former President Clinton, in September 2012, honored Perez Molina at a Clinton Initiative gathering. Ironically while Bill Clinton was president, he stated “’It is important that I state clearly that support for military forces or intelligence units which engaged in violent and widespread repression of the kind described in the report was wrong, and the United States must not repeat that mistake.’”

Perez Molina is a close partner of the U.S.-led efforts to remilitarize Central America, through actions like “Operation Anvil” that sent 200 U.S. Marines to San Marcos, Guatemala, where they were stationed on May 4, 2012, the day that the Guatemalan Presidential Guard committed a massacre of seven Quiche activists in Totonicapan, protesting to demand respect for their water rights.

In Honduras, Operation Anvil resulted in the massacre of four Miskitu villagers traveling on the Patuca River in May 2012 by U.S. Drug Enforcement Agency led security forces, from U.S. State Department helicopters piloted by Guatemala special-forces unit, the Kaibiles, an act that remains in impunity.

AS CENTRAL AMERICA IS REMILITARIZED, THE CENTRAL AMERICAN COURTS ARE DESTABILIZED

Unfortunately, the likelihood of a real investigation in to the May 11, 2012 massacre in Honduras is slim as the corrupt justice system – that participated in and tried to “legalize” the 2009 military coup – was further undermined by a December 12 ‘technical coup’ in which the Honduran Congress dismissed four out of five Constitutional judges in the Honduran Supreme Court.

Between June and September 2012, El Salvador suffered a crisis that virtually shut down the Supreme Court for three months. The crisis was provoked by the ARENA party, closely linked to 1980s death squads. In El Salvador, ARENA is broadly understood to be U.S.-backed, and some suspect U.S. complicity in the Supreme Court crisis. A July 14, 2008 State Department cable released by Wikileaks cited reports of ARENA party plans “to insulate El Salvador from (leftist) FMLN mischief should Mauricio Funes win the March 2009 election. The draft plan is reportedly focused on preventing a catastrophic (conservative, pro-U.S.) ARENA loss in the Legislative Assembly, early selection of Supreme Court magistrates by the current Assembly, and legislative strengthening of existing Salvadoran institutions before the 2009 elections.”

Back in Guatemala, former General Perez Molina’s December 28, 2012 decree is just the latest in a series of attacks against the independence of the judiciary in Central America, precisely as U.S. and Canada backed militarization pushes forward, as North American companies and investors further their economic interests in the region.

As prosecutions of war crimes committed by U.S.-backed military regimes during the Cold War push ahead elsewhere across Latin America, millions of Latin Americans who form part of justice movements would hope that the international community would no longer tolerate a President issuing a decree, in flagrant violation of international law, with the objective of entrenching impunity and thus evading responsibility for crimes against humanity.

The December 28 Presidential Decree and attacks on reformists in the justice system are tests not only of the strength of the justice reform in Guatemala, but also a test of the United States and Canada to finally end their ongoing support of those who gained political power through military governments engaged in crimes against humanity.